Pro Se Use of International Law

by Roger Alford

When I am reviewing developments regarding international law to report here on Opinio Juris, I regularly have to separate the wheat from the chaff. For every case I report about an interesting international law development there are a dozen others that I entertain. Those dog cases are surprisingly interesting and sometimes humorous. They provide a unique insight into the ways that international law is finding currency in domestic litigation. I thought you might find a review of such cases interesting, with a focus on pro se litigation cases.

There are numerous factual scenarios in which international law is invoked by pro se parties. Here is a sample from the past few weeks, starting with stronger cases and proceeding to the absurd. I will present the problem and you identify the international law issue. The answers are after the fold.

1. In Grinard-Henry v. United States, 2006 WL 2265416, defendants were 173 miles south of Jamaica in a stateless vessel. When the defendants realized they were being followed by the Coast Guard, they began to madly throw the bales of cocaine overboard. They were arrested and convicted of various drug offenses. In a motion to vacate, what is the international law argument?

2. In Morris v. State, 2006 WL 2872870, the defendant is on death row and since conviction he has been diagnosed with bipolar disorder. He argued on appeal that his death sentence should be reversed based, inter alia, on international law. What is the international law argument?

3. In Ballentine v. United States, 2006 WL 3298270, Ballentine brought an action claiming that he has been denied his right to vote in presidential elections because of his status as a United States citizen residing in the Virgin Islands, an unincorporated territory of the United States. What is the international law argument?

4. In United States v. Kabat, 2006 WL 2583314, defendants went to a Minuteman III nuclear missile site in North Dakota on the belief that the Holy Spirit had called them to dress up as clowns, display various banners, and damage government property at the nuclear site. They were charged and convicted with destruction of government property. What is the international law argument?

5. In Hummingway v. Bush, 2006 WL 3313324, plaintiff brought an action against George Bush, Kofi Annan, Tony Blair and other world leaders. The action was brought on behalf of all concerned citizens of the world who seek justice and truth. The goal of the lawsuit was to end the scourge of war, prevent future violations of fundamental human rights, and hold accountable those responsible for their crimes. What is the international law argument?

1. In Grinard-Henry, the defendants argued ineffective assistance of counsel because their lawyers had not raised jurisdictional arguments under international law. The court rejected the argument, finding that a stateless vessel is by definition within the jurisdiction of the United States. They also recognized the protective principle would justify asserting jurisdiction over the vessel and the defendants.

2. In Morris, the defendant argued that various treaties of the United States and customary international law required the reversal of his death sentence. The court dismissed the action as one based on the Supremacy Clause, finding that “arguments that the death penalty is unconstitutional under international laws and treaties have systematically been rejected by the courts.” The defendant also argued that he had a post-conviction diagnosis of bipolar disorder. One wonders whether the defendant could have relied on Atkins to challenge his death sentence. Atkins, of course, relied in part on international opinion to conclude that the death sentence for the mentally retarded was unconstitutional under the Eighth Amendment.

3. In Ballentine, the international law argument was that the Virgin Islands is one of only seventeen territories remaining in the world today that are classified under international law as ‘non-self-governing territories.’ The United States has ratified the International Covenant on Civil and Political Rights (“ICCPR”), which contains specific language requiring States Parties to afford their citizens the right to vote, and to afford the people of non-self-governing territories such as the Virgin Islands the right to self-determination. The argument was rejected because the ICCPR is not self-executing.

4. In Kabat, the defendants relied on the 1996 ICJ nuclear weapons decision to argue that the use of nuclear war violates international law. They argued that they have a right and responsibility to correct this violation of international law. The court rejected the arguments, finding that the internatinal law defenses do not support a dismissal of the indictment for destroying government property.

5. In Hummingway, the plaintiffs threw everything they could think of at the defendants, including crimes against humanity, war crimes, Islamic law, the U.N. Charter, Nuremberg principles, and the Geneva Conventions. The court dismissed the action, finding that the complaint “utterly fail[ed] to set forth a short and plain statement of any claim showing that Plaintiffs are entitled to relief.”

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